AP's Argument That "Illegal" Is More Accurate than "Undocumented" Doesn't Hold Water

I sent the following email yesterday to Margaret Sullivan, the Public Editor of the New York Times.

Dear Ms. Sullivan,

I write with respect to your piece today
addressing Jose Antonio Vargas's recent request to the AP and the New
York Times to stop using the term "illegal immigrant." Thank you for
discussing this important issue. I am an immigration attorney based in
Philadelphia, Pennsylvania. You cited Mr. Corbett, the associate
managing editor for standards at The Times, as stating:

[I]n referring in general terms to the issue of people living in the United States
without legal papers, we do think the phrases "illegal immigrants" and "illegal
immigration" are accurate, factual and as neutral as we can manage under the
circumstances. It is, in fact, illegal to enter, live or work in this country
without valid documents.

I wanted to respond to this
comment with a few points. First, the terms "illegal immigrant" and
"illegal alien" are not defined in the Immigration and Nationality Act
and are generally disfavored by immigration judges and the members of
the Board of Immigration Appeals, who make decisions about whether
someone is to be removed from the U.S. or not. According to applicable
law, the terms are no more accurate than "undocumented" or
"unauthorized." "Alien" is the most accurate legal descriptor of a
non-citizen. I've attached and copied below a blog post I wrote for change.org a few years ago that explains this in more detail, with citations to applicable law (change.org recently removed the blog posts from that time period from its site, so the post is no longer available online.)

Second, the term illegal immigrant is not accurate because it
usually assumes a person's immigration status when that status has not
yet been determined by a court of law. It has been documented that the
Department of Homeland Security routinely attempts to deport U.S.
citizens, and sometimes succeeds.

People born in a foreign country can
sometimes derive citizenship when their parents naturalize, and this can
be used as a defense against deportation. Such a person might not know
he or she was a U.S. citizen. The government bears the burden at the
outset of removal proceedings to
demonstrate that a person is not a U.S. citizen. Too often, the
government gets it
wrong. In many other cases, an immigrant can assert a defense against
deportation in immigration court and either gain or confirm lawful
status. The clearest parallel here is when a journalist refers to an
individual suspected of or charged with a crime as a "criminal" or
"felon," which I understand is disfavored.

Third, there are many types of immigration status ranging from U.S.
citizen to no lawful status, and it is not always clear where an
individual falls within that spectrum. For instance, immigrants brought
to the U.S. as children can apply for deferred action for childhood
arrivals under the policy announced by President Obama on June 15,
2012. The government claims that this type of deferred action is not a
lawful status, but it looks very much like lawful status to me. It
confers a two-year protection against deportation which is renewable
indefinitely and, in most cases, also grants permission to lawfully work
in the U.S. With a work permit, deferred action beneficiaries can
obtain a Social Security Number and, in most states, a driver's
license. In some cases, they will be able to leave and reenter the U.S.
through lawful channels.

Is someone who has been granted deferred action for childhood
arrivals an "illegal immigrant" or even "undocumented?" It is hard to
say. I think the question of whether deferred action is a lawful status
with the procedural protections that confers will eventually have to be
decided by the federal courts. There is a panoply of other types of
status. The immigration laws are confusing even (or especially) to
government officials and immigration judges, whose decisions are often
overturned on appeal. Yet I often see all foreign-born people lumped
into a single catch-all category in the press.

There are other reasons not to use the term "illegal immigrant," but
my point here is that the argument that the term is used because it is
more accurate than the terms favored by immigrants and advocates is
baseless.

Regards,

David Bennion

Here is the post I originally published on change.org's Immigrant Rights blog:

Last week, Schumer (NY-D) gave reporters an indication of the administration's rhetorical strategy as Congress prepares to draft immigration reform legislation. From the Washington Post:

Schumer said legislation should secure control of the
nation's borders within a year and require that an estimated 12 million
illegal immigrants register with the government and "submit to a
rigorous process to convert to legal status" or face immediate
deportation. Rejecting the euphemism "undocumented workers," he said: "Illegal immigration is wrong -- plain and simple."

Schumer said Democrats no longer can afford to use soft, euphemistic language about illegal immigration.

"When we use phrases like 'undocumented workers,' we convey a message
to the American people that their government is not serious about
combating illegal immigration, which the American people overwhelmingly
oppose."

So either Senator Schumer himself used the word "euphemism" to
describe the phrase "undocumented workers," or two media outlets did in
describing his comments. Regardless, his message is clear. According
to Senator Schumer, "undocumented" is a misleading term, and he intends
to be straight with the public by using accurate language.

But Senators and their speechwriters rarely construct their own arguments from scratch. So where did this meme come from?

The top result in a google search
for "undocumented" and "euphemism" right now is a blog post about
Schumer's recent remarks. But the second and third results go to far
right-wing nativist websites VDare and 24Ahead (formerly Lonewacko). From 24Ahead:

Is "undocumented immigrant" a euphemism?

Yes, it's just a politically-correct way of saying the legally
correct term: "illegal alien". They're "aliens" - people who are
citizens of some other country - and they're here illegally.

The post goes on to quote a thinly-sourced portion of the nativist site illegalaliens.us
(scroll to the bottom) which argues that "illegal alien" is a more
accurate term than "undocumented" or "out of status," but doesn't bother
to cite to any case, statute, or legal document.

I've often seen in comment threads on immigration stories or blog
posts the assertion that the terms "undocumented" or even "illegal
immigrant" are politically correct euphemisms for the legally correct
term: "illegal alien." This is the meme that Schumer picked up on last
week.

Unfortunately for Schumer and the nativists, the meme is wrong.
"Illegal alien" and "illegal immigrant" are not recognized terms of
immigration law.

"Alien" is a legal term defined in the Immigration and Nationality Act
and used in immigration court and Board of Immigration Appeals (BIA)
decisions day in and day out. "Illegal alien" and "illegal immigrant"
are not.

Conservative legislators wrote federal legislation in the 1980s and 1990s that uses the term "illegal alien," but most of these
laws are not immigration laws, they deal with eligibility for public
benefits and reimbursement of states by the federal government for
incarcerating immigrants. And this was part of an effort to give
credibility to the term.

The term "illegal alien" itself makes two brief appearances in the INA: in Sections 280 and 286,
both dealing with accounting arrangements among the federal agencies.
The term, though, is not defined in the INA and is not part of the
terminology used by immigration judges and lawyers to communicate with
each other about a person's immigration status during the course of
removal proceedings (now there's a euphemism for you: "removal").

"Illegal alien" is an incoherent term from the standpoint of
immigration law. It assumes the thing that is to be proven: status
under the immigration laws. Immigration judges, the BIA, and even ICE
attorneys don't use it because it is meaningless in the context of
immigration proceedings.

The point of having a legal process to determine immigration status
is to exhaust claims and defenses in an adversarial setting. A person
who crossed the border or overstayed a visa might have a valid asylum
claim, could qualify for discretionary cancellation of removal, might
have a current family-based or employer-sponsored petition, may have
been the victim of a serious crime in the U.S., might have had
grandparents who immigrated back when immigration from within the
Western Hemisphere was much less restricted, might have been the victim
of domestic violence, or could even be a citizen through their parents
without having realized it. In removal proceedings, an immigration
judge must review all allegations made by the government and claims for
relief made by the respondent before coming to a decision as to whether
or not the respondent should be deported under applicable immigration
laws.

Using the term "illegal alien" waves away that whole legal process
and assumes a predetermined result: guilty, lawbreaker, criminal. That
is why restrictionists favor the term, not because it is legally
accurate.

Immigration restrictionists know that language matters, which is why
they have pushed so hard to discredit accurate descriptors and inject
their preferred terminology into the discourse on immigration.

Representative of this effort is the site referenced above,
Illegalaliens.us. In addition to "undocumented," the site lists other supposed euphemisms
for illegal aliens, including "foreign students," "residents," and
"Mexicans." The site also lists "possible euphemisms" such as
"Hispanics," "Latinos," and "Spanish speakers."

It may come as a surprise to the millions of Spanish-speaking U.S.
citizens, myself included, to learn that we are actually illegal aliens,
or to the millions of Latin@ citizens living in the U.S. Likewise, the
100 million Mexicans in Mexico may not realize that they are living
euphemistic lives south of the border.

Deborah Howell, former ombudsman for the Washington Post, got snowed on this issue
by a State Department officer who even told her that "he was not
speaking for the State Department" when giving her his legal analysis.

On terminology, Chip Beck, a State Department officer and
former U.S. consul, believes it's important to use "illegal alien."
Beck, who said he was not speaking for the State Department, said,
"Foreign nationals who come across the border without papers or who
overstay their visa are deemed 'illegal aliens.' Those are the legally
correct terms."

Beck may deem them to be "illegal aliens," but the legally correct term is "alien." He continued:

"The correct terminology is not derogatory but carries precise meanings under law." He sent a copy of the federal law[ed.: looks like a broken link from the problematic USCIS website] that says: "The term 'alien' means any person not a citizen or national of the United States."

So let's be precise, then. "Illegal alien" is a nonsense term in the
context of U.S. immigration law. It is not defined anywhere in the
INA. It's no more accurate than the terms I prefer: "undocumented" or "unauthorized," [ed.: link fixed]
which also appear in the INA. In my experience, you are much more
likely to hear the terms "entered without inspection" or "out of status"
come out of the mouth of an immigration judge than "illegal alien."

Now somebody just needs to let Chuck Schumer know he should be getting his immigration analysis from the Sanctuary or AILA, not from Lonewacko and Steve Sailer.

Categories:

Tags:

Comments

AP's Argument That \"Illegal\" Is More Accurate than \"Undocumented\" Doesn't Hold Water

I sent the following email yesterday to Margaret Sullivan, the Public Editor of the New York Times.

Dear Ms. Sullivan,

I write with respect to your piece today \naddressing Jose Antonio Vargas's recent request to the AP and the New \nYork Times to stop using the term \"illegal immigrant.\" Thank you for \ndiscussing this important issue. I am an immigration attorney based in \nPhiladelphia, Pennsylvania. You cited Mr. Corbett, the associate \nmanaging editor for standards at The Times, as stating:\n

[I]n referring in general terms to the issue of people living in the United States \nwithout legal papers, we do think the phrases \"illegal immigrants\" and \"illegal \nimmigration\" are accurate, factual and as neutral as we can manage under the \ncircumstances. It is, in fact, illegal to enter, live or work in this country \nwithout valid documents.

I wanted to respond to this\n comment with a few points. First, the terms \"illegal immigrant\" and \n\"illegal alien\" are not defined in the Immigration and Nationality Act \nand are generally disfavored by immigration judges and the members of \nthe Board of Immigration Appeals, who make decisions about whether \nsomeone is to be removed from the U.S. or not. According to applicable \nlaw, the terms are no more accurate than \"undocumented\" or \n\"unauthorized.\" \"Alien\" is the most accurate legal descriptor of a \nnon-citizen. I've attached and copied below a blog post I wrote for change.org a few years ago that explains this in more detail, with citations to applicable law (change.org recently removed the blog posts from that time period from its site, so the post is no longer available online.) \nSecond, the term illegal immigrant is not accurate because it \nusually assumes a person's immigration status when that status has not \nyet been determined by a court of law. It has been documented that the \nDepartment of Homeland Security routinely attempts to deport U.S. \ncitizens, and sometimes succeeds.